Monday, 10 December 2012

TRIPPING on IP Technical Assistance: Part I

This blog’s second year running campaign on the online visibility of
the intellectual property (IP) offices in Africa makes it inevitable that it
would share
any news or thoughts on matters relating to these offices, the IP regime they operate in and generally, on the development of knowledge-based economies across Africa.

In a two-part post, this Leo would briefly shine a spotlight on the
technical assistance provision under the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS). He
is doing so in order to awaken thoughts on whether there is a real and serious “obligation”
on developed-country WTO Members to advocate for the most favourable implementation
of TRIPS and assist IP offices across Africa upgrade to 21st century working standards. (Afro Leo warns that internet access and basic
infrastructure is still a working progress across the continent) Though
this post focuses on the North-South cooperation, regard should be had to the
recent drive towards South-South
IP cooperation.

TRIPS and IP
Technical Assistance

TRIPS did not just establish minimum standards of IP regime
for developing and least-developed
countries (D/LDCs) to follow (NB: when the latter’s transitional
period expires), it also contains flexibilities which allow these
countries to address critical socio-economic needs and at the same time, be
TRIPS-compliant. Under the same
agreement is the so-called Article
67 obligation on developed-country WTO Members to provide technical and
financial cooperation assistance to D/LDCs WTO members to enable them
effectively utilise and implement TRIPS. In order to ensure compliance - or
transparency, to be precise - with Article 67, developed-country WTO Members
agree to publish
records of their technical assistance.

Article 67: Technical Cooperation

“In order to
facilitate the implementation of this Agreement, developed country Members
shall provide, [on
request and on mutually agreed terms and conditions], technical and
financial cooperation in favour of developing and least-developed country Members.
Such cooperation shall include assistance in the preparation of laws and regulations on the
protection and enforcement of intellectual property rights [as well as on the prevention of their
abuse, and shall include support regarding the establishment or reinforcement
of domestic offices and agencies relevant to these matters], including the training of
personnel.”

Questioning Article
67

To this Leo, the highlighted phrases in the above Article 67
are worth bearing in mind; but the salient ones which go to the heart of this
post are:

(A) [on request and on
mutually agreed terms and conditions]; and

(B) [as well as on the prevention of their abuse,
and shall include support regarding the establishment or reinforcement of
domestic offices and agencies relevant to these matters].

First in this two-part post, let us look at phrase (A). According to Article 67,
D/LDCs have to actually put in a request for IP-related assistance and this
would - as one would infer - be considered, negotiated and on the terms and
conditions agreed by both parties (Afro Leo is not sure if the protocol involved in “request” is
an onerous one, but it is clear that the policy is: “ask and it shall be given
unto you”. ButAfro Leo also understands the sayings: “A beggar has no
choice” and “He who pays the piper calls the tune” are often true - if not
always). Consequently, my thoughts on this part are as follows:

(1) if I were to buy
into Afro Leo’s sayings, would it not be safe to conclude that D/LDCs really
had no say in what they have been offered so far or what they can be offered in
the future by developed-country WTO members?

(2) Is Article 67 really an obligation considering that there
is no consequence if a developed-country WTO Member fails to provide assistance?
Also, is it fair that it is rare,
if not impossible, to bring a WTO
dispute proceeding against a developed country such as the USA for not
providing the requested assistance when the same USA can bring a similar action
against a non-compliant country identified in its Special
301 Report?

(3) What sort of “mutual” terms and conditions are we
talking about here: That technical assistance is offered on the condition that
the recipient shall enact and/or enforce stringent IP laws/policies?; And, in whose
interest is it to have IP laws on a par with international standards?

(4) Is there not an inherent inequality of bargaining power and
obligations within this so-called “Article 67
commitment” since a developed-country WTO Member could refuse the terms
and conditions put forward by a D/LDC? What options does a D/LDC have in such an event?

2 comments:

Stephen Adams
said...

Speaking as a non-lawyer, I would like to point out that certain technical cooperation, such as in the field of capacity building at LDC patent offices in areas such as search and examination, and IT infrastructure, are being supported by WIPO's TISC programme (see ) rather than by the WTO organs. Article 4 of the 1995 "Agreement Between the World Intellectual Property Organizationand the World Trade Organization" and Para. 225 of "Implications of the TRIPS Agreement on treaties administered by WIPO" (WIPO Pub. 464(E)) seem to make it clear that development activities can be carried out by either body.I have been involved in the TISC programme to Kyrgyzstan and Kenya in recent months, and I know of professional colleagues who have been to Nigeria and Ethiopia in the same period. I am also aware of other WIPO consultants who have been involved in programmes on the legislative side, such as in the Caricom countries.

Stephen Adams, many thanks for your contribution. This piece is primarily looking at what individual WTO Member countries are doing for developing and least-developed countries in the area of IP technical assistance. Watch out for part II.